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Subject Area

Constitutional Law; Law: Energy Law; Environmental Law; Legislation; Property and Real Estate Law

Abstract

This Note will explore the various post-Kelo reforms and evaluate the likely ramifications on the historic preservation community. Part II summarizes the Kelo opinion and explains how the decision followed and extended the Court’s public use jurisprudence in Gettysburg Railway Co. and Berman v. Parker. Part III discusses and compares the various state eminent domain reforms enacted in the aftermath of Kelo, with a focus on the blight exemptions and the statutory redefinitions of blight. Part IV argues that as a building’s age is a contributing factor to both its designation as blighted and to its designation as historic, statutory redefinitions of blight will impact a historic building’s likelihood of being condemned. Part V discusses how courts expanded historic preservation as a valid public use and how the strong post-Kelo reforms limit the tools available to preservation groups to obtain dilapidated historic properties for restoration activities. For example, many local governments will be forced to rely solely on historic preservation goals in eminent domain initiatives, a less palatable tactic than coupling historic preservation with blight eradication. Part VI concludes that to serve the interests embodied by the post-Kelo reforms while also effectively preserving historic buildings, states with strong reforms should carve out an exception to the blight definitions. States should more readily allow disrepair and neglect to justify condemnations for historic preservation purposes, yet retain stringent blight definitions in all other regards. Conversely, to protect historic structures from Kelo’s loosening of the public use requirement, states with weak eminent domain reform should consider legislation making it more difficult to condemn and destroy buildings of historical significance.

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